Bargaining Our Rights Away?: The Jurisprudential Implications of Judicial Bargaining on Collegial Courts


In the United States Supreme Court, justices must attract the votes from a majority of their colleagues to set binding precedent. Social scientists have demonstrated that in order to do this, justices engage in sophisticated and strategic behavior, most notably bargaining and accommodation.

This paper assesses whether legalist theories of judicial behavior can account for bargaining behavior. To test this, I take Ronald Dworkin’s theory of law as integrity to stand in for legalism writ large. Integrity requires judges to develop a view of what the law requires according to a process of constructive interpretation. However, each judges’ view of what integrity requires is compromised by bargaining and accommodation. Accordingly, it is unclear if the final opinion has integrity and can justify state coercion, as Dworkin believes it must. Dworkin might attempt to evade this difficulty by exempting large swathes of bargaining from the demands of integrity. However, this proves unsuccessful. I conclude that Dworkin, and therefore legal- ism, cannot explain bargaining behavior, and that we must therefore pursue alternative normative analysis in order to justify that behavior.


judicial bargaining, judicial integrity, Dworkin, legalism



Isaiah W. Ogren (Yale Law School)



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